Trump, Defeated Again on the Travel Ban, Is Still Trapped in His Campaign

At a rally in Nashville, Donald Trump denounced the court ruling in Hawaii that issued a temporary restraining order against his second travel ban.

PHOTOGRAPH BY MARK HUMPHREY / AP

President Trump’s first travel ban was worded vaguely and took effect suddenly, and so the legal responses to it—the public-interest attorneys hurrying to airports, and huddling with family members and laptops in food courts—were a remarkable improvisation. The second ban, against which a federal judge in Hawaii issued a temporary restraining order, on Wednesday night, was announced in advance, and the Administration’s opponents were prepared. The Hawaii case was argued by Neal Katyal, perhaps the most famed progressive litigator of his generation, who was both a principal Deputy Solicitor General under President Obama and the lead attorney in the Hamdan v. Rumsfeld case, which dismantled the military commissions that had governed Guantánamo Bay. The plaintiff was handpicked, too: Ismail Elshikh, the imam of the Muslim Association of Hawaii, whose Syrian mother-in-law was subject to the ban. Elshikh wrote in his pleading that his children are "deeply affected by the knowledge that the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family.” In the precision of this testimony, you could sense that the rushed and panicked responders to the first ban had developed a structure, and refined their arguments.

The Trump Administration revised the travel ban so that it did not explicitly discriminate against Muslims. “It’s not the old order that’s before you—it’s the new order,” the acting Solicitor General, Jeffrey Wall, argued on Wednesday in a parallel case, in Maryland. But U.S. District Court Judge Derrick Kahala Watson, who presided over the Hawaii case, decided that the Administration could not simply wash away its politics. In concluding that the program reflected an intent to discriminate, he leaned not on the language of the document but on the ways that the President and his advisers had described the ban, during the campaign and afterward. “The record before this court is unique,” Watson wrote in his decision. “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order.” He agreed with the Justice Department’s argument that his role was not to look for “veiled” motives behind the executive order. But, he pointed out, “there is nothing 'veiled' ” about a Trump campaign document that stated, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

Nearly two months into Trump’s Presidency, his Administration is still reënacting the central dramas of the campaign. In the hearings and protests over the Muslim ban, Trump’s insistence that the United States is in a civilizational struggle has been met by a basic alarm about religious discrimination, just as it was during the general election. In the spasmodic arguments over health-care reform, the question is how much Trump owes to orthodox Republican beliefs and how much he will fight for them, just as it was during the primary campaign. The argument that Watson made in his ruling last night was that the new Administration would not be judged on its court filings alone but also on the heated talk of the campaign—that he would not give the White House the benefit of the doubt.

After the Ninth Circuit upheld a lower court’s restraining order against the first travel ban, and the Administration chose to revise the ban rather than appeal to the Supreme Court, there was a lot of talk from liberals about how, against the insistent press of the Trump movement, the law had held. But something different held in Watson’s courtroom. He could have decided to more narrowly consider the text of the document, and not the statements of the President and his advisers, in which case he might not have found that the ban violated the establishment clause. But the law is not wholly independent of politics; it is a language in which politics speaks. Watson’s ruling may not have been the final word on the travel ban (the Ninth Circuit and, beyond it, the Supreme Court will consider any appeals), but it is clarifying. The opposition to Trump is rooted in the law, and it is rooted in abhorrence of his politics. The level of that abhorrence will guide the judges, in choosing what evidence to emphasize, and the moderate Republicans senators, in deciding whether they can defend taking health insurance away from more than twenty million Americans, and the chairs of the House and Senate intelligence committees, in guiding their investigations into whether Trump’s campaign collaborated with Russia. These are not fixed institutional forces but fungible, political ones.

Does Trump want to leave the campaign behind? It is the mode in which he seems most comfortable. Last night, in Nashville, having laid a wreath on Andrew Jackson’s tomb, he held a big rally at which he denounced Watson’s ruling. From the podium, he quoted from a federal law that allows the President to ban immigrants unilaterally if he concludes that they are “detrimental to the interests of the United States.” Trump translated this passage for the crowd: “Whoever is President can say, ‘I’m sorry folks, not now, please. We’ve got enough problems.’ ” But, as Watson had demonstrated, it isn’t always that easy. In Nashville, you could sense Trump reaching back for the colloquial ease of the campaign. He knew the rhythms there. As a politician, he was liberated by his campaign. But his political program is still trapped in it.

Benjamin Wallace-Wells began contributing to The New Yorker in 2006, and joined the magazine as a staff writer in 2015. He writes mainly about American politics and society.